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2002 DIGILAW 468 (MAD)

Venu Reddiar v. Balasubramanian and another

2002-06-13

K.GOVINDARAJAN

body2002
JUDGMENT: The plaintiff filed the above appeal questioning the correctness of remand order passed by the lower Court. 2. The plaintiff filed the suit for permanent injunction restraining from interfering with his peaceful possession. In the plaint the schedule property is mentioned as it covers 1 acre and 75 cents, that too within the specific boundaries. Though the suit was resisted by the respondent it is stated in the written statement that within the said specific boundaries mentioned in the plaint, the extent must be more than 1 acre and 75 cents. After considering the objections and evidence, the trial Court decreed the suit as prayed for. So the respondent filed appeal. However, the lower appellate Court foudn that the respondent has no objection to grant a decree with respect to the land measuring 1.75 acres on the south of the plaintiff’s patta land. But having held so, the lower appellate Court remanded the matter to the trial Court to find out what are all the land which are not in possession and what are all the land, which are in possession of the plaintiff. Aggrieved by the same, the plaintiff filed the above appeal. 3. Learned counsel for the appellant submitted that the respondent has no objection with respect to the lands for which the trial Court had granted decree and so the lower appellate Court should not have been remanded the matter to give a finding with respect to the land which is not the subject matter in the suit. Learned counsel for the respondent in reply has submitted that under the guise of enforcing the decree, the plaintiff was trying to take possesion of the land in which the respondent is in possession and so it was necessary for the lowerr appellate Court to remand the matter to the trial Court to find out the correctness of the said particulars and so the order need not be interfered with. 4. The Courts concerned only with respect to the suit property. The plaintiff has come forward with the suit only in respect of 1.75 acres situated within a specified boundary. As found by the lower appellate Court the respondent/ defendant has no objection to grant decree with respect to the said land. So the lower appellate Court should have confirmed the judgment of the trial Court. The plaintiff has come forward with the suit only in respect of 1.75 acres situated within a specified boundary. As found by the lower appellate Court the respondent/ defendant has no objection to grant decree with respect to the said land. So the lower appellate Court should have confirmed the judgment of the trial Court. But unfortunately it has remitted the matter back to the trial Court to find out about the other factors, viz., more and above the suit land how much the plaintiff is in possession and how much extent of land is available in which the plaintiff is not in possession. The said facts are not necessary to deal with the issues raised in the suit. The apprehension of the respondent as submitted by the learned counsel that by enforcing the decrees the petitioner/ plaintiff may disturb her possession cannot be accepted, since the decree is passed only with respect to the specific property situated within the specified boundary. Morever, the question of disturbing the respondents possession on will not arise as the suit is only for bare injunction. Hence, the order of remand is liable to be set aside. 5. In the normal course, I have to remand the matter back to the lower appellate Court to proceed further. But, in this case, the lower appellate Court has confirmed all the findings of the trial Court and also recorded a finding to the effect that the respondent has no objection to pass a decree with respect to the land measuring 1.75 acres mentioned in the plaint. In view of the said facts and also the findings of the lower appellate Court, the appeal A.S. No.114 of 1994 has to be dismissed by confirming the judgment and decree of the trial Court. With the above observations, the C.M.A. is allowed. No costs.